حق دادخواهی و مصونیت قضایی دولت ها: رأی دیوان بین المللی دادگستری در اختلاف آلمان و ایتالیا

The conflict between the rights of States as the primary subjects of international law on the one hand and the rights of individuals as the subsidiary subjects of this legal corpus on the other hand is crystallized in the twenty-first century. Among others, the conflict between the right of individuals to have access to judicial remedies and States immunity from national judicial jurisdiction is noteworthy. In the recent years, having a humanitarian approach in mind, it has been argued that according to general international law, States or governmental officials cannot invoke to immunity, if and when the subject matter of a case is related to an exceptional and grave crimes. This argument has supported or disapproved both at the national and international level. The dispute between Germany and Italy arising from Italians claims related to crimes committed during the second world war, has provided the opportunity for judicial pronouncement on such an argument. This article through categorizing different issues is analyzing the judgment of the International Court of Justice. A review of the judgment indicates that the Court as the highest judicial body has based its judgment on State practice rather than judicial logics. The Court by rejecting the legal doctrines, taking into account the State practice has confirmed the State immunity in cases related to Human Rights or Humanitarian Law. Putting aside the moral evaluations, the Court's judgment is a precious asset for the international legal order and the stability in international relations.